Phelister Masista Masheti & another v Arnold Sitati Bwisa & another [2017] KECA 450 (KLR)

Rule 104(b) of the Court of Appeal Rules prohibits raising any objection to the competence of an appeal which might have been raised by application under Rule 84, without leave of the Court. Rule 84 applications to strike out a notice of appeal must be brought within 30 days of service. No such application was made and no leave was sought, so the objection failed.

The court noted the phraseology of the two provisions differs, section 79G requiring 'good and sufficient cause'. Under Rule 4 the stricture of 'sufficient reason' was removed by amendment in 1985, conferring unfettered discretion limited only by relevance and justice. The Supreme Court's Salat principles on extension of time govern the approach. The High Court, though not citing Salat, considered the relevant elements, so there was no error in principle.

Relying on Kyuma v Kyema, the court held that section 79G allows the thirty-day period to be extended only by the time required to prepare a copy of the 'decree or order'. The appellant instead sought 'uncertified copies of the proceedings and a certified copy of judgment', rendering the certificate, in the words of Kwach JA, absolutely worthless and incapable of remedying the delay.

The deputy registrar's certificate showed copies were applied for on 17th September 2012, not June 2012. A diligent litigant would have written to the court complaining about the missing file; the appellant's advocates did not, thinking three months was not long. The High Court made no error in relying on the certified date. Further, the appellant's pursuit of the decretal sum and costs prejudiced the respondents, who reasonably believed no appeal was contemplated.